A/HRC/31/70 1949 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment require State parties to either exercise universal jurisdiction over offences or to extradite alleged perpetrators to another State for prosecution.13 34. In reality, the implementation of the above general principle remains limited, given that it depends on national law. States are entitled to grant their courts universal jurisdiction over certain crimes as a national decision. Consequently, the application of the principle of universal jurisdiction has not been uniform. Some States apply a narrow concept, allowing the prosecution only if the accused is available for trial, while others adopt a broader concept that allows for the initiation of proceedings even in the absence of the accused. 14 Trials in a third jurisdiction pursuant to universal jurisdiction suffer the same weaknesses as purely international trials, such as remoteness from the victims and consequently the limited impact in restoring trust in the rule of law, and possible politicization.15 In the case of the Democratic People’s Republic of Korea, the fact that most suspects likely remain also constitutes a serious obstacle to the controversial extent of universal jurisdiction in terms of in absentia indictment or trial. Another limitation of trials based on universal jurisdiction is that current customary international law would not allow the prosecution of a sitting head of State; the prosecution of the Supreme Leader of the Democratic People’s Republic of Korea is thus precluded.16 35. Despite challenges, prosecution based on the principle of universal jurisdiction might present the only opportunity to move forward on establishing criminal accountability, while the possibility of such prosecution may serve as a catalyst for other processes. 6. International Criminal Court 36. While pursuing prosecution in national courts, the Special Rapporteur remains convinced that the Security Council should refer the situation of human rights in the Democratic People’s Republic of Korea to the International Criminal Court, as recommended by the commission of inquiry (A/HRC/25/63, para. 94(a)) and subsequently encouraged by the General Assembly in its resolutions 69/188and 70/172. The Security Council could refer the situation in the Democratic People’s Republic of Korea to the International Criminal Court on the basis of article 13(b) of the Rome Statute and Chapter VII of the Charter of the United Nations. 37. In the event that the Security Council decided not to refer the situation to the International Criminal Court, the General Assembly could establish a tribunal (A/HRC/25/63, para. 87). In this regard, the General Assembly could rely on its residual powers recognized in, inter alia, its resolution 377 (V) (“Uniting for peace”), which provided that, if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the Assembly should consider the matter immediately with a view to making appropriate recommendations to Members for collective measures. Significantly, the resolution was adopted in response to the impasse in the Security Council 13 14 15 16 Ibid. Philippe, “The principles of universal jurisdiction and complementarity” (see footnote 7 above), p. 379. OHCHR, Rule-of-Law Tools for Post-Conflict States: Prosecution initiatives (United Nations, Geneva, 2006), p. 29. International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), judgment of 14 February 2002. 9